Recently, a federal magistrate judge wrote about the “blizzard of civil actions brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing” BitTorrent that has swept across the U.S.
There is a good chance that if you are reading this article you may have gotten caught in this blizzard. In other words, chances are that a copyright troll (the slang name for the kind of “purveyor of pornographic films” — but it doesn’t have to be pornography, it could be a regular movie or music — that the judge wrote about, above) has you in its sights. I decided to write this article because I found myself spending so much time explaining these lawsuits to potential clients who want me to defend them, that simply putting it all down in writing will save everyone some time.
For reasons that I will explain, I would strongly encourage you to think long and hard before you agree to settle with a copyright troll (i.e. ‘feed the troll’). You have some options, including filing a motion to quash the subpoena, and the goal of this article is to help you start thinking these options through. However, you should also understand that each case is different, this article is not intended to be legal advice, you should not rely on it as such, and this general information may or may not necessarily be applicable to your particular situation. If in doubt, you should consult with an attorney (not the one representing the copyright troll!) about defending you. And deadlines matter, do not wait too long to act, or you can lose options.
FIRST THINGS FIRST: THE LETTER FROM YOUR ISP ABOUT THE SUBPOENA
Usually, people find out they have been hit by the “blizzard” of copyright troll lawsuits when they get a letter from their Internet Service Provider (“ISP”) (for example, Verizon, Charter, etc.). Usually, these letters from the ISP tell you that a lawsuit for copyright infringement has been filed by some company you have never heard of, and that this company has served a subpoena on your ISP seeking your identity. Usually, the letter explains that an internet protocol (“I.P.”) address that was “assigned” to your account was “associated” with an illegal download on BitTorrent. (The words “assigned” and “associated” are in quotes because there are important legal issues involved with those concepts, which correspond to arguments you can raise in court). Usually, your ISP explains in the letter that unless you file an objection (or request for more time) in court, the ISP will turn over your name to the copyright troll (i.e., the plaintiff in the lawsuit). Usually, these letters come in nondescript envelopes, contain a copy of the subpoena issued by the court, and give you thirty (30) days, give or take, to respond. Generally, if you do nothing, your name will be turned over by your ISP to the copyright troll after some time has passed.
As an initial matter, you should understand that your ISP is not suing you. Usually, the only role your ISP plays in this matter is whether or not it turns over your personally identifiable information to the plaintiff copyright troll. Chances are that nobody is suing you yet. And, in fact– and this is one of the hallmarks of a copyright troll–there is a good chance that you will never be served with the copyright troll’s lawsuit.
HOW COPYRIGHT TROLL CASES USUALLY WORK
The main thing most copyright trolls are after is a nuisance-value settlement, or what some lawyers will call ‘go away’ money. Typically, the troll files a lawsuit against a bunch of “John Doe” defendants alleging that various IP addresses downloaded a movie (or music, etc.) from BitTorrent or a similar peer to peer (“P2P”) file sharing service that violates the plaintiff troll’s exclusive copyright in that movie (or music, etc.). The defendants are called “John Doe” defendants, because when the plaintiff copyright troll files the lawsuit, it does not know the names of the people who used the IP address to download the allegedly infringed movie (or music, etc.) That is why the plaintiff troll serves a subpoena on the ISP — the troll is trying to uncover the identity of the people who are legally responsible for the allegedly infringing downloads. (Again, whether you are legally responsible for downloads made from an IP address that has been “assigned” to your account by your ISP is a more complicated question, see for example here. Generally, if you are getting the letter from the ISP, its because you happen to pay the Internet bill, not because you are the person who necessarily downloaded the allegedly infringing content).
For those people who do nothing, and their ISP turns over their information to the copyright troll, the next thing they can expect is that they will receive a nasty letter from the copyright troll’s lawyer demanding a payment of thousands of dollars in order to settle the copyright infringement claims (and sometimes other claims too). This is what the troll is really after: a few thousand easy dollars. Litigation is very difficult and expensive. What the troll really wants are any easy settlements that can be obtained without having to do the work of actually serving a lawsuit and then litigating it in court. So some of the more aggressive trolls have “negotiators” or other non-lawyers on staff whom you can call to easily pay and end the case.
It is no surprise or coincidence that many copyright trolls price their monetary settlement demands at around the same price that it costs to hire a defense lawyer. Most lawyers will charge you a few thousand dollars to represent you in a case like this. So the trolls figure if they can stay around that neighborhood, say $2-10 K, there is a group of defendants who will probably just pay the troll the money to simply make the whole situation go away.
YOUR OPTIONS: MOTION TO QUASH THE SUBPOENA AND OTHER APPROACHES TO FIGHTING THE TROLL
I generally explain to people that there are, more or less, four different ways to weather the copyright troll blizzard. The decision of which approach is right for you is yours to make.
- The Ostrich Approach. This means put your head in the sand, pretend there is not a problem, and hope that the lawsuit simply goes away. As I noted above, there is actually a good chance that the case will eventually go away. So this approach can actually be effective. Many trolls never bother to serve people with the lawsuit (which is required if you want to actually bring a case to trial) after they get their list of names from the ISP’s. For the copyright troll, time is better spent simply trying to collect from their list of names than actually litigating. So lots of the more infamous trolls file tons of these lawsuits, and the when they come up on the court’s service deadline (the date by which the “John Doe” defendants have to be either served with the lawsuit or dismissed from the case — this may work differently depending on if you are in federal or state court or depending on your judge’s local rules) they simply dismiss the case.If you do nothing, that’s obviously cheap and easy, but there are a couple downsides to this approach. If you do not fight the subpoena, your name will probably be turned over to the troll. So you may start receiving mail or phone calls from the troll seeking to get you to settle. More importantly, once the troll has your info, it is up to the troll what to do with it. Once the troll has your info, the troll can file an amended complaint, naming you as a defendant and making your name public. It can be difficult to erase all traces of something like that on the Internet. This is why there are so many pornographers bringing these cases; the copyright trolls want to leverage the stigma associated with pornography into easy settlement money. There is also a separate question of whether the Doe will actually serve you with the complaint, after you have been named. Actually being served with a complaint is highly unlikely, although possible. And actually having a copyright troll case go to trial and be adjudicated on the merits would be pretty much unprecedented, as least to my knowledge. The problem with the ostrich approach is that there is simply no guarantee that your particular case will be one of the ones that goes away, or how long it will take to go away, assuming it does. In short, this is a low cost, but risky approach, best suited for people who do not care that much about the outcome.
- The D-I-Y Approach. Most judges and lawyers are generally skeptical that non-lawyers will do a good job representing themselves. There is a reason for this. There are lots of landmines in litigation. Even people who do a good job arguing their own interests normal life can easily trip up on procedure. I have seen it happen lots of times. Sometimes clients who go this route end up calling me down the road after they have screwed things up. Usually, it is more expensive to fix a mess than it would have been to hire a lawyer in the first place. For example, in these kinds of cases, it can be difficult to file a motion to quash on your own (as a ‘pro se’ or ‘in pro per’ Doe defendant) without revealing your identity. There is a lot of guidance out there on these kinds of cases. For example, you might check out fightcopyrighttrolls.com. Some judges make it easier for pro se defendants than others. But you should understand that if you care about the outcome, and decide to go this route, you do so at your own peril. Also, be very careful trying to talk to the copyright troll’s lawyer or “settlement negotiator” on your own – he or she will be trying to get you to incriminate yourself and will use your words against you! And don’t forget that if the troll doesn’t yet know your identity, you should be careful not to accidentally identify yourself, say be leaving a message with your name.
- Hire a Lawyer Like Me. The first thing I will probably do on your behalf is seek to file a motion: (a) to quash the subpoena on your ISP, and/or (b) to sever the Does, and/or (c) to reconsider the decision granting early discovery (if indeed it has been granted already). So it is important that you contact me prior to your ISP’s deadline. These motions are sometimes denied, but sometimes, when a lawyer like me writes a good motion, it can effectively end the whole case. Lawyers like me are fighting a battle against these kinds of cases nationwide, and I am happy to say that it looks like the tide is turning. Some courts have even gone so far as to ban these kinds of lawsuits, and other courts are shutting them down at the early discovery stage. Depending on your individual circumstances, my initial retainer fee is likely to be a few thousand dollars. If the motion to quash doesn’t work, there are other good arguments to make, but what next step is right for your case is something me or another lawyer like me should tailor to your individual circumstances. If you feel that you are innocent and want to clear your name, if you really do not want your name connected to the lawsuit, or if you philosophically think these lawsuits are wrong and would rather pay to defend yourself than pay off a copyright troll, then I highly recommend that you hire a lawyer like me.
- Feed the Troll. Although I am loathe to admit it, sometimes simply paying the troll its ransom is the right decision. If there is a compelling reason why you cannot face the uncertainty of being involved in a lawsuit, then simply paying the troll may be the right decision. For example, what if you are in the middle of obtaining professional licensure, and need to disclose whether you are involved in any lawsuits? Being stuck in the ‘blizzard’ of a copyright troll lawsuit could be a problem, and it may be worth the few thousand dollars (based on other concerns) to simply pay the nuisance value. However, in my experience, a good reason to pay the troll is exceedingly rare. And you should also understand that it is solely this category of defendant, who feeds the troll, that makes these lawsuits profitable such that the trolls keep filing them.
Finally, a couple of additional disclaimers: Nothing in this article or on this website should be considered as creating an attorney-client relationship. Unless I agree to represent you, do not try to send me confidential information or try to post any comments on my website that reveal your confidential information or identity. Unless and until we have both executed a written retainer agreement (which I am happy to provide for you upon request), and you have paid me an initial retainer fee, I am not your attorney and am not representing you. If you have decided to defend yourself, please do not call me for additional advice. I do not have time to field those kinds of calls, and it is not fair to my clients.
If you would like to explore having me defend you, then please do give me a call. Or, better yet, email (or, if you must, fax) me a copy of everything you got from your ISP or from the copyright troll along with a cover note specifying your deadline to respond.
Whatever you decide: Good Luck!